Brazilian airframer Embraer upholds its position that the lawsuit of Air Astana over quality issues with its five E190-E2s is unfounded and that any obligation to pay financial compensation to the airline is out of the question. Embraer restates its position in a so-called motion to dismiss that it presented in late June to the Supreme Court of the State of New York, which has scheduled a hearing on this document on September 7. Embraer: 'Air Astana is contradicting its own allegations'. As reported before on AirInsight, the dispute between the airline from Kazakhstan and Embraer continues behind the scenes. Parties had until mid-July to exchange legal documents after procedural issues delayed this for most of the past months. The dispute centers around quality issues with Air Astana’s fleet of five E190-E2s that have been leased by AerCap and joined the airline between December 2018 and November 2019. In July 2021, Air Astana filed a lawsuit with the New York Supreme Court and requested $12 million in remedies, stating that it was forced to ground three E2s from December 2020 following a raft of software and hardware issues. Some caused uncommanded in-flight vertical deviations and as such affected safe operations, the airline said. It claimed that the aircraft was not airworthy but that Embraer “masked the gravity of its failings” and that its behavior “smacks of intentional wrongdoing.” Embraer has always denied that the E2 was unsafe, saying that the type “was, is, and continues to be airworthy and safe to operate.” The airframer denied that it breached any obligations and said it would vigorously defend against Air Astana’s claims. No other E2 operator is believed to have experienced the same technical issues as the Kazakh carrier. In the Motion to Dismiss that it filed with the New York court in late June, Embraer elaborates on its position against Air Astana (the plaintiff). The OEM states that Air Astana has largely ignored previously presented arguments that exonerate Embraer. But more so, Air Astana has not disputed that all five E190-E2s were back in service in July 2021, the same month the carrier filed its lawsuit. 'E2s were never unsafe to operate' “This is fatal to Plaintiff’s consequential damages claim because the Complaint alleges that the grounding, from which Plaintiff’s alleged damages solely arise, would continue until “the E2 suspension of operations can safely be ended.” Thus, contradicting its own allegations in the Complaint, Air Astana found the aircraft to be safe to fly despite Embraer’s alleged failure to deliver safe aircraft and to remediate the alleged defects in those aircraft”, the Embraer motion says. “Because Plaintiff deemed the E2 safe to return to service despite the alleged absence of any adequate remediation, it is an inescapable conclusion that the aircraft never were unsafe to operate in the first place. Likewise, Plaintiff’s bald allegation that Embraer is trying “to hide behind” the European Union Aviation Safety Agency regulations cannot obscure the fact that it is undisputed that the E2 was certified by the pertinent aviation authority relating to its design and manufacture.” Embraer’s attorneys conclude: “Simply stated, Plaintiff cannot demonstrate, as a matter of law, heightened gross negligence—i.e., “conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing. As such, Plaintiff’s consequential damages claim should be stricken or dismissed.” Air Astana hasn’t made any reference to the dispute in its HY1 2022 update on July 29, nor in the 2021 annual report. The two parties were ordered to present any confidential documents to the Supreme Court, which has scheduled a status conference and a hearing on Embraer’s motion to dismiss for September 7.
